MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 July 2001                   
	DOCKET NUMBER:   AR2001058364

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. William D. Powers		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That regulations stated that if the FSM had wanted to exclude her from the SBP she would have had to have signed her concurrence with that decision.  She signed no such form and there is no record that he requested she be excluded.  

EVIDENCE OF RECORD:  The FSM's military records show:

After having had prior service in the U. S. Navy, he enlisted in the Regular Army on 21 July 1948.  On 7 January 1963, he completed an Election of Options under the Uniformed Services Contingency Option Act of 1953, DA Form 1041, declining to receive reduced retired pay in order to provide an annuity for his dependents.  He retired on 1 August 1968.  He died on 1 October 2000.

Public Law 87-381, enacted 4 October 1961, established the Retired Serviceman’s Family Protection Plan (RSFPP).  It covered only persons dependent on the member at the time of his retirement. 

Public Law 92-245, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The RSFPP was not automatically converted to the SBP. Upon creation of the SBP, an 18-month Open Season was conducted from       21 September 1972 - 20 March 1974, in which all pre-1972 retirees were given the option to enroll.  The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by SBP.  This was done on several occasions.  First, a bulletin was sent out describing SBP.  The bulletin was followed by a circular and then by a letter which included a form, which when completed and returned would extend the benefits of SBP to those already retired.  A final notice provided a box to check on a postal card indicating the retiree's intention.  The law did not require spousal notification for pre-1972 retirees.

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  The law did not require spousal notification.

Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than maximum spouse coverage.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 (but deferred to 1 April 1992) – 30 September 1992.  The law did not require spousal concurrence or notification.
Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  The law did not require spousal concurrence or notification.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no evidence of Government error or injustice in this case.

2.  When in 1963 the FSM first had an opportunity to elect to receive reduced retired pay in order to provide an annuity for his dependents, he elected not to do so.  He then failed to enroll in the SBP when it was established in 1972.  That decision was consistent with his earlier decision not to receive reduced retired pay in order to provide an annuity for his dependents.  

3.  The FSM received his full retired pay from his retirement in 1968 until his death in 2000.  He had four additional Open Seasons during which he could have enrolled in the SBP.  At no time were SBP premiums deducted from his retired pay so it is not credible to believe that he was not aware that the applicant would not receive an SBP annuity when he died.  

4.  As the FSM was a pre-1972 retiree neither spousal notification nor spousal concurrence was required in his decision not to enroll in the SBP.

5.  Regrettably, in view of the foregoing there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns___  __mvt___  __wdp___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001058364	
SUFFIX		
RECON		
DATE BOARDED	20010724	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.